Click here to read Emily's previous article, "Title IX and Transgender Accommodations: Where Do Things Stand Now? What is Title IX?"
FACT: Title IX is a federal law that applies to every school in the country that receives any federal funding. Title IX prohibits discrimination or harassment based on sex. Violations of Title IX can result in the loss of all of the school/district’s federal funding.
Who can change Title IX?
FACT: Local school boards have no power to change Title IX or any other federal law, nor to make sweeping changes on any legal topic. Local school boards control only their districts, within the constraints of state and federal laws.
FACT: Any change to Title IX would have to come from the U.S. Congress. Any change in interpretation of Title IX in Ohio would have to come from federal courts in Ohio or from the U.S. Supreme Court.
How does Title IX apply to transgender students?
FACT: The Sixth Circuit’s 2016 decision in Dodds is very clear: in public schools, students must be allowed to use the restrooms and locker rooms of the gender with which they identify.
FACT: The majority of school districts in Ohio have the same policy language about accommodating transgender students, and those that don’t specifically spell it out in policy are still required to do so under federal law.
FACT: Generally, unless district policy says otherwise, students are not allowed to randomly choose which restroom to use. For the most part, students who identify as transgender or non-binary must self-identify to ensure access to the restroom of the gender with which the students identify.
What if a district doesn’t accommodate transgender students?
FACT: Failing to follow federal requirements regarding accommodation of transgender students can jeopardize a district’s federal funding.
FACT: Failing to follow the federal requirements can void a district’s liability insurance coverage.
FACT: Failing to follow the federal requirements can lead to very expensive lawsuits that districts are likely to lose based on current law.
What about employees?
FACT: Under a 2020 U.S. Supreme Court ruling, U.S. employers are required to accommodate transgender employees by, among other things, allowing them to use the restrooms of the gender with which they identify. This ruling applies in the public and private sectors.
FACT: Public school districts are already prohibited from discriminating against transgender employees under the 2020 Bostock ruling.
FACT: The Court in Bostock interpreted the definition of “sex” in Title VII to include gender identity and sexual orientation. Title IX contains the same definition of “sex” as Title VII and has traditionally been interpreted consistently with Title VII definitions.
What’s the bottom line?
School districts in Ohio are required to follow federal law. And above all, school board members and administrators want every student to be safe and able to learn in school every day.
Emily R. Spivack is a senior associate at Squire Patton Boggs (US) LLP, an OASBO Platinum Sponsor. She can be reached at 216.479.8001 or firstname.lastname@example.org.
Rev. May 10, 2023